Mariani - Ontario Court of Justice finds that business records extracted from seized data storage units contrary to s. 8 of the Charter could be admitted into evidence

A CRA auditor had a strong suspicion that the audited company (MMFL) had been paying for substantial construction work on its individual shareholder’s home, but she did not transfer the file over to criminal investigations until eight months later when she encountered evidence suggesting that invoices on hand at MMFL from the building contractor had been fraudulently altered to disguise that this was going on. Greene J found that this did not engage the Jarvis doctrine based on evidence of the CRA auditor that, up until that point, she was exploring s. 163(2) civil penalties rather than considering it to be a criminal matter. Accordingly, the evidence subsequently seized pursuant to a search warrant after the transfer of the file to criminal investigations was not excluded by Greene J on Jarvis grounds.

However, there was a deficiency in the search warrant. It authorized CRA to seize records and data storage units, but did not authorize CRA to conduct a thorough search of the data storage units. However, Greene J found that s. 24(2) of the Charter permitted this evidence seized contrary to s. 8 of the Charter to be used at trial since the admission of such evidence would not put the “administration of justice into disrepute.” In particular, “the CRA investigators honestly believed that the warrant permitted the search of the computers and the ability to forensically examine the computers” and since the “CRA officers limited their search to banking records, tax forms, invoices and similar documents,” “the privacy interest was arguably reduced.”

Neal Armstrong. Summary of R. v. Mariani, 2019 ONCJ 128 under Charter s. 8.